noting legislature “affixe[s]” “range of punishment” for “conduct found by the jury to have been committed”
How later courts described this case
- noting legislature “affixe[s]” “range of punishment” for “conduct found by the jury to have been committed”
- noting legislature “affixed]” “range of punishment” for "conduct found by the jury to have been committed”
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(concurring).
I concur only in the result reached by the Court in this case, but my reasoning, differs somewhat from that embodied in the other opinions.
At the outset, I believe the broad interpretation given to the Saving Provisions by Presiding Judge Onion in his concurring opinion is the correct view. The Legislature obviously intended to give defendants found guilty of a crime under the old Code an opportunity to avail themselves of the more lenient sentencing provisions of the new Code. This interpretation is consistent with that of the Saving Provisions of the *867 new Controlled Substances Act, (Acts 1973, 63rd Leg., Ch. 429). Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973).
In Jefferson v. State, 519 S.W.2d 649 (Tex.Cr.App.1975), this Court approved the imposition of sentence for aggravated robbery under Sec. 29.03, V.A.T.S., Penal Code after a conviction for robbery by firearms under Art. 1408 of the old Code, even though the elements of the two offenses were different. And in Bishoff v. State, Tex.Cr.App., (No. 49,516 delivered March 12, 1975) (rehearing pending), this Court approved the imposition of sentence for conduct constituting an offense under Sec. 21.06 of the new Code (“Homosexual Conduct”) after conviction for the offense of sodomy under Art. 523 of the old Code. This was done even though the new Code proscribed deviate sexual intercourse with another of the same sex while the old Code did not require, nor did the indictment allege, nor did the verdict find that the defendant and the complainant were of the same sex. Despite the variance in the elements of the offenses discussed above, sentencing under the new Code was permitted.
If exact identity of elements of the old and new Code offenses were required, Sec. 6(c) of the new Code would have a very limited application which I do not think the Legislature intended. I therefore find myself in agreement with Presiding Judge Onion that Sec. 6(c) permits sentencing under the new Code for conduct which constituted an offense under the old Code.
I cannot agree with his suggestion, however, that review of such questions should be on an abuse of discretion basis. Nor can I countenance an interpretation of Art. 37.-07, V.A.C.C.P. which would permit the trial judge, or require him upon objection, to hear evidence at the punishment stage of a trial on which new Code offense would contain the “more applicable” sentencing provisions. Art. 37.07(3), V.A.C.C.P., is precise in limiting evidence at the punishment stage to the defendant’s prior criminal record, his general reputation, and his character. Contrast the broad provision of Art. 37.071(a). As a matter of policy, I also feel that punishment hearings should not be complicated with aimless searches for “more applicable” offenses. The Legislature did not intend to create nor is anyone anxious to see the advent of trifurcated trials.
I would permit the trial judge to submit the range of punishments for all new Code offenses raised by the evidence and properly requested by the defendant, as the careful trial judge did in this case. The question on review should be as on a question of law, not for abuse of discretion. The range of new Code punishments submitted to the jury after conviction for an old Code offense should be only for offenses containing elements proven at the guilt stage of the trial and raised by the evidence. A new Code offense would not be raised if the evidence negated it by containing uncontro-verted proof of an element distinguishing it from the old Code offense. If the defendant should request punishment for an offense containing elements that were not proven up at the first stage, refusal of that request would be proper. If, however, he were to request punishment for a new Code offense the elements of which were established at the guilt stage and the evidence of which was not otherwise negated by uncon-troverted evidence, his request should be granted. In the case at bar, appellant was convicted of statutory rape under the old Code, but the proof showed that he employed force and threats of violence and that the prosecutrix was fifteen. The elements of the new Code offenses of aggravated rape and rape of a child were thus shown and the possibility that appellant was guilty of those offenses was not negated by uncontroverted evidence elsewhere in the record. It follows that the trial judge did not err in submitting to the jury the ranges of punishment for these offenses at the second stage of the trial.